[2017] KEHC 3084 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1982 OF 2012

IN THE MATTER OF THE ESTATE OF PWM (DECEASED)

SBM.............................................................……APPLICANT

VERSUS

MNM……………………………........…1ST RESPONDENT

JM………………………………....…...2ND RESPONDENT

R U L I N G

1. The deceased, PWM died domiciled in the Republic of Kenya on 25th September 2009. The Respondents herein, the deceased’s mother and brother respectively, petitioned for grant of letters of administration intestate in respect of the deceased’s estate. The following were listed as beneficiaries in the affidavit in support of the petition for letters of administration:

a) MNM - mother

b) JM - brother

c) JR - brother

d) HM - sister

e) RM - brother

f) MC - brother

The grant was issued to the Respondents on 13th November 2012 and confirmed on 9th October 2013.

2. On 16th May 2014, the Applicant filed the present summons for revocation/annulment of grant issued to the Respondents on grounds that the said grant was obtained fraudulently by concealment from the court of the fact that the Applicant is the widow of the deceased.

3. A summary of the case is that she got married to the deceased in 2001 under the Kamba Customary law and their marriage was blessed with two issues namely MMW and SMW. She complained that despite the 1st Respondent (her mother in-law), being aware of her marriage to the deceased, she went ahead and applied for letters of administration without her knowledge and consent.

4. The Applicant alleges that her mother in law deliberately excluded her and her children from the list of beneficiaries, with the intent of disinheriting them. That she used the letters of administration to fraudulently receive the death gratuity due to the estate from the Public Trustee Machakos. The Applicant attached a copy of an affidavit allegedly sworn by the deceased in which he declared her his wife, copies of birth certificates to establish paternity of her children and various photographs alleged to have been taken during a customary marriage ceremony and during the deceased’s burial.

5. The Application is strongly opposed by the 1st Respondent whose case is that her late son never married, or never introduced the Applicant to her or to any member of the family as his wife, and that there has never been any Kamba Customary law practice marking the alleged marriage of her late son and the Applicant. Particularly she stated that no one from the deceased’s family, including herself, ever visited the Applicant’s parents’ home to inform them of the Applicant’s presence in her home (kuoka). No payment of dowry was ever made (ntheo) and no payment of bride price has ever been made (Ngasya).

6. The Respondent insisted that the Applicant is not known to her, or to her family, or to her neighbours as a wife, save for the way she was interfering with the deceased’s estate. The Respondent states that if there had been a valid marriage, there at least ought to have been a delegation from the Plaintiff’s family who came to attend the deceased burial. She challenged the authenticity of the affidavit purportedly sworn by the deceased declaring it to be falsehood and that it does not validate the alleged customary marriage.

7. The Respondent further cast doubt on the authenticity of the annexed children’s birth certificates stating that it was clear that they had been obtained in 2010 after the deceased had passed away. She accused the Applicant of breaking into the deceased’s house shortly after his demise on the pretext of being the deceased’s sister and stealing all his vital documents and properties.

8. The Respondent also claimed to have purchased part of the parcel of land at Lo-Pelelengo jointly with her son and to have jointly developed the said parcel of land where she settled with all her children. She had been farming on the said land since 2005 until March 2011 when the Applicant together with her agents, physically assaulted her and forcefully ejected her from her home. The Applicant and her agents took away a vehicle being [particulars withheld] Suzuki Maruti which the deceased had given her and vandalized all property belonging to the deceased including: household items, 2 motor vehicles, a generator and a posho mill among other belongings. They also took away 53 herds of cattle, goats, sheep and chicken.

9. I have reviewed the parties’ pleadings together with their written submissions and identified the following to be the issues for determination:

a) Whether the Applicant was married to the deceased under Kamba customary law.

b) Whether the alleged marriage resulted in two children entitled to inherit from his estate.

c) Whether the grant was obtained fraudulently by concealing from the court of material facts warranting its revocation.

d) The Applicant’s interaction with the estate of the deceased.

10. On the first issue it was incumbent upon the Applicant to prove her standing as a wife to the deceased. The burden of proof lies with her under Section 107of theEvidence Act which provides that:

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Although Section 60of theEvidence Act (Cap 80) allows the court to take judicial notice of specific customary law, this requires to be approached with great circumspection noting that the details of such customary law may not be clear, or it may be in a process of fundamental adaptation and change. This necessitates that any claim that a custom is operative, be proved.

11. In Njau & Another v Wahito 92008 1 KLR (G&F) 385 and the case of Earnest Kinyanjui Kimani v Muiri Gikanga & Another (1965) EA 735, the Court of Appeal stated at page 738 that:

“The parties in this case are Africans and therefore the Court will take Judicial notice of such African customary laws as may be applicable….. The difficulty remains how are these customary laws to be established as fact before the Court? In some case the Court will be able to take judicial notice of these customs without further proof as for instance in cases where the particular customary law has been the subject of a previous judicial decision or where the customary law is set out in a book or document or reference…, but usually in the High Court or in a Magistrate’s Court, the relevant customary law will, as a matter of practice and of convenience, have to be proved by witnesses called by the party relying on that particular customary law in support of his case.”

12. To prove the alleged customary marriage, the Applicant filed an affidavit allegedly sworn by the deceased in which the deceased declared her his wife, for purposes of regularizing his records at the Public Service Commission. She also filed photographs alleged to have been taken during her traditional marriage ceremony, which photos where disputed by the 1st Respondent who indicated they were taken on a totally different occasion.

13. The Applicant also filed a statement of one MK who was alleged to be her father and to have given her hand in marriage to the deceased on 4th and 5th April 2009. He attached a purported schedule of items brought by the deceased to him during the alleged ceremony. The Applicant also filed a letter from the [particulars withheld] Clan purporting to have witnessed the marriage ceremony between herself and the deceased.

14. It is telling that there was no single witness from the deceased’s family, or the said [particulars withheld] Clan who attested to the purported marriage. There was no confirmation from the deceased’s family, or clan members that they participated in the alleged customary marriage practices and witnessed the three practices namely: kuoka, ntheoand Ngasya, in accordance with the Kamba Customary Law. The only evidence from the deceased’s family is an affidavit of marriage sworn by the deceased, which in itself is not proof of marriage as was held in Succession Cause No. 232 of 2012, the matter of the estate of the late Selina Akinyi Oketch.

15. The Applicant did not call any witness to confirm that the customary practices were indeed performed, neither did she call any neighbours to attest to the fact that she lived with the deceased as husband and wife before he died. Simply put the Applicant failed to prove to the court that she was married to the deceased and should therefore be considered a wife for purposes of succession.

16. Secondly, the Applicant filed two copies of birth certificates with regard to her children, which indicate that the deceased was the father of the children. A close look at the birth certificates shows that the first child was born on 17th October 2001, and the date of registration of his birth was 23rd October 2001. The birth certificate was however issued on 14th May 2010.

17. The second child was born on 12th February, 2006, and the date of registration of her birth was 28th February, 2006. The birth certificate was issued on 14th May 2010. I find that the birth certificates are valid having been applied for at birth before the deceased passed away, even though they were actually obtained after his death. I therefore hold the Applicant’s two children to be the children of the deceased and are entitled to be beneficiaries of the estate of the deceased.

18. Thirdly, I observe that in the affidavit in support of the petition for grant, the Applicant’s children were not listed as beneficiaries to the estate. This contravened the mandatory provisions of Section 51of theLawof Succession Act (Cap 160), which requires the petitioners to disclose all the beneficiaries of the estate of the deceased. Furthermore, rule 7 of the Probate and Administration Rules confers statutory mandatory duty on the applicant to disclose all the surviving children of the deceased, which she failed to do. Under Section 76(b)of theAct, a grant is liable for revocation where the person who obtained it concealed material information from the court or excluded some of the survivors of the deceased. See - the case of In the Estate of Ezekiel Mulanda Masai [Eldoret High Court Probate and Administration 4 of 1992].

19. That said, I am alive to the fact that although a party may establish a case for revocation as is the case herein, the court rather than revoke the grant has the discretion to make other orders which fit the circumstances of the case. For instance in the matter of the Estate of Thareki Wangunyu aka Thareka Wangunyo Nairobi High Court Succession cause No. 1996 of 1999, a widow obtained a grant without disclosing the existence of one of her step-children and some of her own children as beneficiaries. The court held that although the matter merited revocation of the grant, it would instead ordered that the stepchild was who left out be included in the list of beneficiaries without interfering with the grant.

20. Lastly, I note that the Applicant did not dispute the fact that she took possession of, and even disposed of some of the deceased’s properties since the passing away of the deceased, without the authority of a confirmed grant.This is prima facie evidence of intermeddling by the Applicant. This court, under Section 47of theLaw of Succession Act(Cap 160), is vested with jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient. Further,rule 73of theProbate and Administration Rules saves the inherent powers of this court to make such orders as may be necessary for the ends of justice to be met, or to prevent abuse of the process of the court.

21. After careful consideration of the arguments advanced before me and for the reasons set out above, I make a finding that the Applicant failed to prove to the court that she was married to the deceased. She therefore cannot be considered as a wife for purposes of succession. I also find that she has not demonstrated that she depended on him when he was alive. The Applicant’s two children are however held to be the children of the deceased and are entitled to be beneficiaries of the estate of the deceased.

22. From the foregoing and in the interest of justice, I make the following orders:

i) The grant of Letters of Administration issued to MNM and JM on 13th November 2012 and confirmed on 9th October, 2013 be and is hereby revoked and a fresh grant is hereby issued to include the two Administrators and the Protester, SBM as the legal representative for her children’s benefit.

ii) That the certificate of confirmation of grant issued to the Respondents herein be and is hereby amended to include MMW and SW, the Applicant’s children herein as beneficiaries.

iii) In coming up with a mode of distribution the Administrators shall take into account all the properties that the Protester appropriated for herself and dissipated before the grant was confirmed.

iv) That the 1st Respondent be and is hereby reinstated to her home.

v) The Applicant be and is hereby restrained from continuing to intermeddle in the estate of the deceased, and from dealing with or interfering with any property forming part of the estate pending the distribution of the estate.

The OCS and the area Chief in whose jurisdiction her home falls under, shall accord her appropriate protection.

It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this 5th DAY OF October, 2017.

………………

L. ACHODE

JUDGE

In the presence of ……Advocate for the Applicant

In the presence of ……Advocate for the Respondents